1 Wednesday, 13 January 2016 2 (10. 00 am)
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| 1 Wednesday, 13 January 2016
2 (10.00 am) 3 Submissions by MS CARSS-FRISK (continued) 4 MR JUSTICE BLAKE: Yes. 5 MS CARSS-FRISK: My Lord, the next topic then is State 6 immunity. We say that there is no doubt that the 7 substance of the claim does indeed implead the 8 State of Qatar. It will be necessary to have a bit of 9 a look at the particulars of claim in due course, but 10 may I begin by taking you to some passages in the letter 11 before claim, which set the scene and make very clear, 12 as well as the particulars of claim, what this is all 13 about. 14 You have the letter before claim in bundle 1, tab 7, 15 page 18. It starts -- well, it has its own internal 16 numbering, but the passage that I wanted to begin 17 with -- 18 MR JUSTICE BLAKE: Do I have the page right, page -- 19 MS CARSS-FRISK: Page 18. 20 MR JUSTICE BLAKE: I thought tab 7 starts at page 39. 21 MS CARSS-FRISK: Then I apologise. Something has gone wrong 22 with my numbering but it is the last page of the letter. 23 MR JUSTICE BLAKE: Of the letter of ... 24 MS CARSS-FRISK: The letter before claim, and I think 25 it is ... 1 1 MR JUSTICE BLAKE: I think it is internal page 18, is it? 2 MS CARSS-FRISK: That is right, my Lord. 3 MR JUSTICE BLAKE: I think that is our 56. 4 MS CARSS-FRISK: Apologies for that, my Lord. 5 MR JUSTICE BLAKE: No. 6 MS CARSS-FRISK: So right at the end of the letter, 7 your Lordship sees the heading "Foreign Act of State" 8 and the reference to how some of the events described 9 above could be argued as falling within the doctrine of 10 acts of foreign State. 11 Then I think one can go down to the next paragraph, 12 which begins: 13 "It is submitted that the abuse of high office vast 14 scale deprivation of property of sorts and prolonged 15 deprivation of liberty", et cetera. 16 So we put some emphasis on the reference to "abuse 17 of high office" there. 18 So it seems it was anticipated foreign act of State 19 might be introduced as a doctrine of relevance but then 20 there is that reference to how public policy might 21 prevent that, but it is all about abuse of high office. 22 Your Lordship sees the same thing actually earlier 23 in the letter, and I am afraid on my pagination, it is 24 internal page 4. 25 MR JUSTICE BLAKE: All right, as long as I know what I am 2 1 looking for, I can probably navigate my way back. 2 MS CARSS-FRISK: Under the heading "TV channel claim". 3 MR JUSTICE BLAKE: Yes. 4 MS CARSS-FRISK: And about the middle of that paragraph 5 there is a reference to this, it says: 6 "Six months later the claimant found out from 7 a go-between with the Crown Prince that the defendant's 8 real intention was to deplete the claimant's financial 9 resources and that in reality this was to become another 10 one of his abuses of power and influence." 11 So that, again, although, of course, all of these 12 allegations are denied by the defendant and the 13 State of Qatar, one sees the nature of the claimant's 14 case. 15 MR JUSTICE BLAKE: Yes. 16 MS CARSS-FRISK: The final reference in this letter, the 17 bottom of internal page 5, the last paragraph. 18 MR JUSTICE BLAKE: "The actions described ..." 19 MS CARSS-FRISK: That is right: 20 " ... all instigated by the defendant, they reflect 21 the corrupt manner in which he systematically used his 22 power and influence within government to entrench his 23 own personal political position." 24 Et cetera. 25 If you then go to the particulars of claim in 3 1 bundle 1 at tab 4, we can go straight to the end, 2 paragraph 60, just to have confirmation of the way it is 3 put in terms of abuse of office of State and abuse of 4 power, paragraph 60, which deals with a claim for 5 aggravated and exemplary damages, and one sees at (b) 6 the plea: 7 "The defendant abused his office of State and his 8 conduct is by its very nature arbitrary, oppressive and 9 unconstitutional and amounted to an arrogant abuse of 10 power." 11 If we look at a few other passages in the 12 particulars of claim, we get the very, very clear 13 flavour that the whole claim is about State power being 14 exercised in a certain way that the claimant alleges is 15 tortious, involving a number of State officials but 16 specifically, of course, it is said that the defendant 17 was involved and as to his status, as we will see, the 18 plea specifically is that he was Prime Minister and 19 Minister of Foreign Affairs at material times. 20 So if we look at paragraph 1 first: 21 "Such conduct set out herein as shall be found to be 22 tortious arose out of the conduct of the defendant 23 and/or persons acting as agents and/or under the 24 direction and control of the defendant. The defendant 25 is thereby vicariously liable for such conduct." 4 1 So it looks as though the plea is of both direct and 2 vicarious liability. 3 Then at paragraph 3 you have that reference to the 4 defendant's high office as Prime Minister and Foreign 5 Minister. 6 If we go on focusing now on the expropriation part 7 of the claim, at paragraph 8 one sees the reference to 8 how the defendant also obtained a prohibitive order 9 preventing the sale of the Al-Rayyan land whilst also 10 ensuring that it was to be used for the Education City 11 project. 12 Then at paragraph 9 you have the reference to how 13 the Minister of Municipality, instituted a compulsory 14 appropriation of the land, for the same sum as that 15 which the claimant had rejected, it is said, in 1997. 16 Then at paragraph 12 the reference to how in 17 a letter the Ministry of Municipal Affairs and 18 Agriculture accepted the claimant's grievance in respect 19 of the valuation of the land and recalculated the value. 20 Whilst this was an improvement, it was still very 21 considerably below the market value, it is said. 22 Then at paragraph 14, a reference to a letter from 23 the Director of the Office of the Prime Minister, acting 24 Minister of Foreign Affairs, regard the expropriation of 25 the land. 5 1 These are just examples, my Lord, of, as I have 2 said, the public flavour of what is being alleged 3 involving a number of State officials evidently acting 4 in their capacity as such. 5 You have precisely the same situation in relation to 6 the second major part of the claim, which is about 7 detention. 8 Now, we have summarised that claim in paragraph 30 9 of our skeleton, but I don't think it is necessary to go 10 through all of that. Again, you have a large number of 11 State officials involved. So it is the Attorney 12 General, the Assistant Attorney, the Attorney General 13 for State Security, the Qatari courts, the Qatari 14 police, the Chief of State Security, all of those State 15 officials are said to have been involved, and we have 16 set all of this out with the references to the 17 particulars of claim in our skeleton, and exercising 18 what are paradigm public powers in relation to the 19 claimant. 20 MR JUSTICE BLAKE: Yes. 21 MS CARSS-FRISK: I will have to say a little bit more about 22 that in due course, but taking it all together and, of 23 course, referring to the specific pleas of abuse of 24 official authority, abuse of power, it is clear, we say, 25 that that is the nature of the claim against the 6 1 defendant. 2 MR JUSTICE BLAKE: Yes. I appreciate that if this claim 3 were ever tried there may be another issue as to what is 4 the law that would have applied, but I think the 5 indication from Belhaj would be the law of the place 6 where the alleged tort was committed rather than UK 7 law -- 8 MS CARSS-FRISK: Qatari. 9 MR JUSTICE BLAKE: -- which adds another interesting twist 10 to the whole story, but assuming against that 11 proposition for the moment that these were acts 12 notionally done in the UK, a claim for false 13 imprisonment would not lie where a judicial authority 14 has authorised the detention. 15 MS CARSS-FRISK: Yes. 16 MR JUSTICE BLAKE: It would only be in respect of executive 17 detention either before or after the judicial authority. 18 MS CARSS-FRISK: Yes, that is one frill to it which we have 19 not raised for the purpose of this particular 20 application. 21 MR JUSTICE BLAKE: No, I can quite understand why. I am 22 just trying to engage with it, but this kind of claim, 23 if tried in the UK for that kind of period, which is the 24 bulk of the detention period, as I understand it, 25 although there are bits at either end, would be 7 1 malicious prosecution, wouldn't it, it would be causing 2 a public official to bring a prosecution? But then that 3 in itself would involve reasonable and probable cause, 4 malice and such like. 5 MS CARSS-FRISK: Yes, that is, of course, not how it has 6 been put. 7 MR JUSTICE BLAKE: No, quite. No, no, but I -- 8 MS CARSS-FRISK: The way it has been put, in our submission, 9 and bearing in mind what your Lordship says about the 10 position as it would be in this country if it involved 11 judicial authority, the way it has been put the road 12 leads straightforwardly to the defendant in his high 13 office abusing that office. Somehow it is suggested he 14 would be vicariously liable; it's not spelt out how. It 15 is suggested somehow that he would be jointly liable 16 with these various State officials, but whichever way it 17 works, as I say, it is about his status in that public 18 office or those public offices that he held. 19 MR JUSTICE BLAKE: It is about his status and, as 20 I understand it, you are also saying it is about 21 allegations that other public officials, acting it is 22 alleged at his behest, acted unlawfully and improperly 23 and for bad faith. 24 MS CARSS-FRISK: Yes, to what extent they acted in bad 25 faith, that is one matter. It is not clear to what 8 1 extent that is pleaded but certainly it is pleaded that 2 there were these various acts by officials acting in 3 that capacity, acting under colour of their office, with 4 the defendant, as it were, at the top of the pyramid. 5 So it is acts by various State representatives but 6 importantly, including, of course, the defendant as 7 a State representative. I say that is important because 8 that is what distinguishes this case -- well, one of the 9 things or the features that distinguished this case from 10 Belhaj, where, of course, there was a problem that no 11 representative of the foreign States said to be or 12 argued to be impleaded was actually sued. That simply 13 doesn't arise here. The defendant is being sued. He 14 was acting on the allegations made under colour of his 15 office in Qatar. 16 MR JUSTICE BLAKE: Yes. Just as a matter of information, 17 I have picked up from Mr De La Mere's skeleton argument 18 that Belhaj is before the Supreme Court. Is that right? 19 MS CARSS-FRISK: I understand it has been argued before the 20 Supreme Court, yes, and judgment is being awaited. 21 MR JUSTICE BLAKE: That was in 2015. The skeleton says 22 2014. 23 MR DE LA MERE: I am so sorry, November 2014. 24 MR JUSTICE BLAKE: I was wondering how they could get on top 25 of it before the Court of Appeal had delivered it, or 9 1 had done so within three months, which would be very 2 speedy indeed. 3 MR DE LA MERE: It is two months. 4 MR JUSTICE BLAKE: That is what I rather assumed but I was 5 thrown a little bit by the chronology, but with no date 6 for judgment as yet. 7 MS CARSS-FRISK: Not that I am aware, my Lord. Of course, 8 we say that although clearly a very important case, it 9 doesn't actually at all impact on the position here. 10 MR JUSTICE BLAKE: I can anticipate that, but having done my 11 pre-reading, as it were, Belhaj is the distinction 12 between State immunity and act of State. 13 MS CARSS-FRISK: Yes, but the particular question involving, 14 of course, whether it was permissible to extend the 15 State immunity doctrine, so that it would apply where no 16 official of the particular State in question was 17 actually being sued. 18 MR JUSTICE BLAKE: So that is the topic or one of the topics 19 which is being considered by the Supreme Court. 20 MS CARSS-FRISK: As I understand it, that is the key topic 21 that is being considered by the Supreme Court. I don't 22 understand that there is any challenge -- and, of 23 course, difficult such a challenge would be -- to what 24 was already decided in the Jones case by the House of 25 Lords. So we are, as I say, squarely within the ratio 10 1 of Jones. Not just Jones, I mean Jones recognising 2 prior authority about the State immunity applying where 3 representatives of a foreign State are sued and their 4 acts are impleaded, they are treated as the acts of the 5 State. 6 MR JUSTICE BLAKE: Sorry to take you out of your course -- 7 MS CARSS-FRISK: Not at all. 8 MR JUSTICE BLAKE: -- but just so I can understand the 9 architecture of pending issues -- 10 MS CARSS-FRISK: Yes. 11 MR JUSTICE BLAKE: -- you at least submit that Jones stands 12 and is not the subject of any revision or application. 13 MS CARSS-FRISK: Or even suggested revision. 14 MR JUSTICE BLAKE: No, and I think the Supreme Court, like 15 the House of Lords, does require advocates to say 16 whether someone is inviting them to depart from 17 a previous decision. 18 MS CARSS-FRISK: Yes. 19 MR JUSTICE BLAKE: But the issue in Belhaj is whether the 20 Court of Appeal were right in upholding the decision 21 that it wasn't barred by State immunity. 22 MS CARSS-FRISK: Yes. 23 MR JUSTICE BLAKE: So there is an issue as to whether State 24 immunity can go a little bit further where you don't 25 directly implead the foreign power. 11 1 MS CARSS-FRISK: Exactly. 2 MR JUSTICE BLAKE: I think I have that. That will do for 3 the present purpose. No doubt I shall hear more. 4 MS CARSS-FRISK: I am quite sure, my Lord. Yes, exactly. 5 A problem that doesn't arise in this case, we say. 6 MR JUSTICE BLAKE: Yes. 7 MS CARSS-FRISK: So I had mentioned the public flavour, the 8 official act flavour that applied, of course, equally to 9 detention as to expropriation in this case, and I have 10 referred to the number of State officials involved, and, 11 of course, it is also then alleged the defendant was 12 involved. 13 That is probably enough by way of background at this 14 stage. I should just briefly show your Lordship the 15 State Immunity Act itself, section 1(1) at bundle 1, 16 tab 3. Section 1(1) plain enough: 17 "A State is immune from the jurisdiction of the 18 courts of the UK except as provided in the following 19 provisions of this part of this Act. The court shall 20 give effect to the immunity conferred by this section 21 even though the State does not appear in the proceedings 22 in question." 23 So immunity applies subject to exceptions set out in 24 part 1. We don't need to worry about those because no 25 one has suggested that any of them applies. 12 1 Then at section 14 you have reference to what is 2 included in the concept of State. So at 14.1: 3 "The immunities and privileges conferred by this 4 part of this Act apply to any foreign or Commonwealth 5 State other than the UK and references to a State 6 include references to the sovereign or other head of 7 that State in its public capacity, the government of 8 that State and any department of that government but not 9 to any entity, hereafter referred as a separate entity, 10 which is distinct from the executive organs of the 11 government of the State and capable of suing or being 12 sued." 13 Mr Tom De La Mere would also like me to refer you to 14 section 20, which he would like your Lordship to read 15 for the purpose of the Apex case that he will take you 16 to. So perhaps I can invite your Lordship just to read 17 that. 18 MR JUSTICE BLAKE: I have read that. I did my homework, 19 Mr De La Mere, and I have picked up section 20, members 20 of the household, yes. Right. 21 Does section 14 apply to foreign judges? 22 MS CARSS-FRISK: Yes, I believe it does. 23 MR JUSTICE BLAKE: Always look on the trade union side. 24 MS CARSS-FRISK: Indeed, absolutely. I believe it would, 25 my Lord, in the sense of -- and I have a feeling that 13 1 may have been mentioned in one of the cases that is in 2 the bundle but I will have to dig deep to remember which 3 one it was. 4 MR JUSTICE BLAKE: Don't go out of your way, although there 5 is an issue about judges and judicial power. 6 MS CARSS-FRISK: I think that may have been mentioned in the 7 Court of Appeal in Propend, my Lord, that we looked at 8 briefly at first instance yesterday. 9 MR JUSTICE BLAKE: Yes, Mr Justice Laws. 10 MS CARSS-FRISK: This links, of course, to the next point, 11 which is the point about how the notion of State must be 12 read as extending to the representatives of the State 13 that are in different positions and lower down, as it 14 were, in the chain. And that is clearly confirmed, 15 although certainly not invented, by their Lordships in 16 Jones v Saudi Arabia. 17 I know your Lordship has refreshed your memory of 18 Jones, but it is probably right that I should show you 19 the particular passages that we rely upon. 20 MR JUSTICE BLAKE: Yes. 21 MS CARSS-FRISK: So that is at bundle 2, tab 25. It is 22 a case which on the facts alleged has some similarities 23 with what is being alleged here. 24 But the particular principle we are looking at now 25 is confirmed in paragraph 10 in the speech of 14 1 Lord Bingham. It may be quicker if I just invite 2 your Lordship to read through paragraph 10. 3 MR JUSTICE BLAKE: I see it. I have read it and underlined 4 it and ticked it, but I will -- 5 MS CARSS-FRISK: So Wealth of Authority -- 6 MR JUSTICE BLAKE: Wealth of Authority is cited. 7 MS CARSS-FRISK: Yes: 8 "A foreign State is entitled to claim immunity for 9 its servants as it could if sued itself." 10 MR JUSTICE BLAKE: Yes. 11 MS CARSS-FRISK: You have this confirmed by Lord Hoffmann 12 and the others, incidentally, in this case agreed with 13 both Lord Bingham and Lord Hoffmann. 14 MR JUSTICE BLAKE: Yes. 15 MS CARSS-FRISK: The speech of Lord Hoffmann paragraph 69 to 16 70. 17 At 69: 18 "What is important, however, is that as Lord Diplock 19 said in Alcom v The Republic of Colombia, the provisions 20 of the SIA fall to be construed against a background of 21 those principles of public international law as are 22 generally recognised by the family of nations, that 23 means that State in section 1(1) and government, which 24 the term State is said by section 14(1)(b) to include 25 must be construed to include any individual 15 1 representative of the State acting in that capacity as 2 it is by Article 2(1)(b)(4) of the Immunity Convention, 3 the official acting in that capacity is entitled to the 4 same immunity as the State itself." 5 It is also right to note while we are here that 6 it is well established that State immunity is not 7 conditional on the relevant State acts being lawful or 8 indeed within the authority of the State or consistent 9 with the instructions of the State. 10 Now, I don't think that that proposition is being 11 disputed, and indeed I don't think the other proposition 12 about State representatives that we have just looked at 13 is being disputed either in this case. 14 MR JUSTICE BLAKE: Yes. 15 MS CARSS-FRISK: It is paragraph 12 in the speech of 16 Lord Bingham. 17 MR JUSTICE BLAKE: Yes, I have read it, and I have the 18 point. 19 MS CARSS-FRISK: And Lord Hoffmann, paragraphs 74 to 78. Of 20 course, as your Lordship knows, a key question in Jones 21 was about whether there was a special exception in 22 respect of torture, and the House of Lords said not, and 23 again there is no issue about that in this case. 24 Also important to note the reference to how improper 25 purposes or a purpose of personal gain, personal grudge, 16 1 personal vendetta or something of that kind by a State 2 official would not take the relevant act outside the 3 scope of State immunity. 4 This was something dealt with by Lord Hoffmann in 5 particular at paragraph 75 and paragraph 92. 6 MR JUSTICE BLAKE: Can I just look those passages up, 7 please. 8 MS CARSS-FRISK: Page 300, right at the bottom, 9 paragraph 75. He refers to a case called Mallen v The 10 United States of America: 11 "The US deputy constable in El Paso, Texas boarded 12 a street car showing his badge, beat up the Mexican 13 consul and took him to the county jail. The assault was 14 in pursuit of a private grudge, but an international 15 arbitration tribunal held that the United States was 16 liable because the deputy constable had acted under 17 colour of public authority." 18 MR JUSTICE BLAKE: Yes, in a sense I suppose that is the 19 reverse. 20 MS CARSS-FRISK: Sorry, my Lord? 21 MR JUSTICE BLAKE: That is not quite the same as saying the 22 doctrine of State immunity absolves the State when an 23 official acts for a private grudge, but I see the State 24 was liable. 25 MS CARSS-FRISK: Yes, and it is even clearer that 17 1 Lord Hoffmann means that that sort of circumstance would 2 not undermine State immunity if you look at paragraph 92 3 on page 304 -- 4 MR JUSTICE BLAKE: Yes. 5 MS CARSS-FRISK: -- where he is referring to something said 6 by Lord Hope in Pinochet, and at C he says: 7 "If the act is done under colour of official 8 authority for the purpose of personal gratification as 9 in the Mallen case should be irrelevant." 10 MR JUSTICE BLAKE: Yes, I see. 11 MS CARSS-FRISK: He is clearly saying this in the general 12 context of considering in what circumstances State 13 immunity does or does not apply. 14 MR JUSTICE BLAKE: So someone who has a grievance that they 15 wish to litigate, where a public official has acted for 16 their own personal gratification, cannot sue in the 17 ordinary courts of law, but it may be able to get before 18 an international tribunal -- 19 MS CARSS-FRISK: That may be so. 20 MR JUSTICE BLAKE: -- if there was such a thing between the 21 two States. 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